DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 1/20/2026 has been entered.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
This subject matter eligibility analysis follows the latest guidance for Patent Subject Matter Eligibility Guidance.
Claims 1 - 20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter.
Step 1:
Claims 1 – 11 and 17 – 20 are drawn to a system and CRM.
Claims 12 – 16 are drawn to a method.
Thus, initially, under Step 1 of the analysis, it is noted that the claims are directed towards eligible categories of subject matter.
Step 2A:
Prong 1: Does the Claim recite an Abstract idea, Law of Nature, or Natural Phenomenon?
Claims 1 - 11 are exemplary because they require substantially the same operative limitations of the remaining claims (reproduced below.) Examiner has underlined the claim limitations which recite the abstract idea, discussed in detail in the paragraphs that follow.
1. (Currently Amended) A system comprising:
one or more storage media storing instructions; and
one or more processors configured to execute the instructions to cause the system to:
receive, an indication from at least one sensor, of a heart rate of a player of a computer simulation, wherein the computer simulation comprises a plurality of scenes, wherein:
each scene of the plurality of scenes is associated with a respective heart rate zone defined by an upper bound and a lower bound; and
a first scene of the plurality of scenes is associated with a first heart rate zone and a second scene of the plurality of scenes is associated with a second heart rate zone;
evaluate the heart rate based on a first heart rate zone that is associated with a current scene of the plurality of scenes by comparing the indication of the heart rate to the first heart rate zone; and
alter, responsive to a result of comparing the indication of the heart rate to the first heart rate zone, a first aspect of the computer simulation without changing an action in the computer simulation or a difficulty level of the computer simulation.
The claims recite italicized limitations that fall within at least one of the groupings of abstract ideas enumerated in the 2019 PEG, namely, Mental Processes and Certain Methods of Organizing Human Activity.
More specifically, under this grouping, the italicized limitations represent managing interactions between people. For example, the italicized limitations are concepts performed in the human mind (including an observation, evaluation, judgment, opinion) and managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions). The claims are directed towards the observing of a user’s biofeedback measures, analyzing them and making a determination such as a modification of the game scene according to rules of the game.
Prong 2: Does the Claim recite additional elements that integrate the exception in to a practical application of the exception?
Although the claims recite additional limitations, these limitations do not integrate the exception into a practical application of the exception. For example, the claims require additional limitations as follow, (emphasis added): media, processors and sensors.
These additional limitations do not represent an improvement to the functioning of a computer, or to any other technology or technical field, (MPEP 2106.05(a)). Nor do they apply the exception using a particular machine, (MPEP 2106.05(b)). Furthermore, they do not effect a transformation. (MPEP 2106.05(c)). Rather, these additional limitations amount to an instruction to “apply” the judicial exception using a computer as a tool to perform the abstract idea. Therefore, since the additional limitations, individually or in combination, are indistinguishable from a computer used as a tool to perform the abstract idea, the analysis continues to Step 2B, below.
Step 2B:
Under Step 2B, the claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because they amount to conventional and routine computer implementation and mere instructions for implementing the abstract idea on generic computing devices.
For example, as pointed out above, the claimed invention recites additional elements facilitating implementation of the abstract idea. Applicant has claimed computer media, processors and sensors. However, all of these elements viewed individually and as a whole, are indistinguishable from conventional computing elements known in the art. Therefore, the additional elements fail to supply additional elements that yield significantly more than the underlying abstract idea.
As the Alice court cautioned, citing Flook, patent eligibility cannot depend simply on the draftsman’s art. Here, amending the claims with generic computing elements does not (in this Examiner’s opinion), confer eligibility.
Regarding the Berkheimer decision, Applicants own specification establishes that these additional elements are generic:
This disclosure relates generally to computer ecosystems including aspects of consumer electronics (CE) device networks such as but not limited to computer game networks. A system herein may include server and client components which may be connected over a network such that data may be exchanged between the client and server components. The client components may include one or more computing devices including game consoles such as Sony PlayStation® or a game console made by Microsoft or Nintendo or other manufacturer, virtual reality (VR) headsets, augmented reality (AR) headsets, portable televisions (e.g., smart TVs, Internet-enabled TVs), portable computers such as laptops and tablet computers, and other mobile devices including smart phones and additional examples discussed below. These client devices may operate with a variety of operating environments. For example, some of the client computers may employ, as examples, Linux operating systems, operating systems from Microsoft, or a Unix operating system, or operating systems produced by Apple, Inc., or Google. These operating environments may be used to execute one or more browsing programs, such as a browser made by Microsoft or Google or Mozilla or other browser program that can access websites hosted by the Internet servers discussed below. Also, an operating environment according to present principles may be used to execute one or more computer game programs.
Servers and/or gateways may include one or more processors executing instructions that configure the servers to receive and transmit data over a network such as the Internet. Or a client and server can be connected over a local intranet or a virtual private network. A server or controller may be instantiated by a game console such as a Sony PlayStation®, a personal computer, etc.
Information may be exchanged over a network between the clients and servers. To this end and for security, servers and/or clients can include firewalls, load balancers, temporary storages, and proxies, and other network infrastructure for reliability and security. One or more servers may form an apparatus that implement methods of providing a secure community such as an online social website to network members.
A processor may be a single- or multi-chip processor that can execute logic by means of various lines such as address lines, data lines, and control lines and registers and shift registers. A processor assembly may include one or more processors acting independently or in concert with each other to execute an algorithm.
Continuing the description of the AVD 12, in some embodiments the AVD 12 may include one or more cameras 32 that may be a thermal imaging camera, a digital camera such as a webcam, an event-based sensor, and/or a camera integrated into the AVD 12 and controllable by the processor 24 to gather pictures/images and/or video in accordance with present principles. Also included on the AVD 12 may be a Bluetooth transceiver 34 and other Near Field Communication (NFC) element 36 for communication with other devices using Bluetooth and/or NFC technology, respectively. An example NFC element can be a radio frequency identification (RFID) element.
Further still, the AVD 12 may include one or more auxiliary sensors 38 (e.g., a motion sensor such as an accelerometer, gyroscope, cyclometer, or a magnetic sensor, an infrared (IR) sensor, an optical sensor, a speed and/or cadence sensor, an event-based sensor, a gesture sensor (e.g., for sensing gesture command), providing input to the processor 24. The AVD 12 may include an over-the-air TV broadcast port 40 for receiving OTA TV broadcasts providing input to the processor 24. In addition to the foregoing, it is noted that the AVD 12 may also include an infrared (IR) transmitter and/or IR receiver and/or IR transceiver 42 such as an IR data association (IRDA) device. A battery (not shown) may be provided for powering the AVD 12, as may be a kinetic energy harvester that may turn kinetic energy into power to charge the battery and/or power the AVD 12. A graphics processing unit (GPU) 44 and field programmable gated array 46 also may be included. One or more haptics generators 47 may be provided for generating tactile signals that can be sensed by a person holding or in contact with the device.
Disclosure herein uses, as an example biometric sensor, a heart rate or pulse sensor. It is to be understood that other types of biometric sensors with supporting systems include iris sensors, voice sensors, face recognition systems, galvanic skin response (GSR) sensors, breath sensors including breath rate sensors, nanotechnology sensors, and other physiological sensors operating on chemical, electrochemical, optical, and electromagnetic bases.
Therefore, these elements fail to supply additional elements that yield significantly more than the underlying abstract idea. Thus, taken alone, the additional elements do not amount to significantly more than the above-identified judicial exception (the abstract idea).
Looking at the limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functioning of a computer or improves any other technology. Their collective functions merely provide conventional computer implementation.
Moreover, the claims do not recite improvements to another technology or technical field. Nor, do the claims improve the functioning of the underlying computer itself -- they merely recite generic computing elements. Furthermore, they do not effect a transformation of a particular article to a different state or thing: the underlying computing elements remain the same.
Concerning preemption, the Federal Circuit has said in Ariosa Diagnostics, Inc., V. Sequenom, Inc., (Fed Cir. June 12, 2015):
The Supreme Court has made clear that the principle of preemption is the basis for the judicial exceptions to patentability. Alice, 134 S. Ct at 2354 (“We have described the concern that drives this exclusionary principal as one of pre-emption”). For this reason, questions on preemption are inherent in and resolved by the § 101 analysis. The concern is that “patent law not inhibit further discovery by improperly tying up the future use of these building blocks of human ingenuity.” Id. (internal quotations omitted). In other words, patent claims should not prevent the use of the basic building blocks of technology—abstract ideas, naturally occurring phenomena, and natural laws. While preemption may signal patent ineligible subject matter, the absence of complete preemption does not demonstrate patent eligibility. In this case, Sequenom’s attempt to limit the breadth of the claims by showing alternative uses of cffDNA outside of the scope of the claims does not change the conclusion that the claims are directed to patent ineligible subject matter. Where a patent’s claims are deemed only to disclose patent ineligible subject matter under the Mayo framework, as they are in this case, preemption concerns are fully addressed and made moot. (Emphasis added.)
For these reasons, it appears that the claims are not patent-eligible under 35 USC §101.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1- 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Elenbaas et al (US 2021/0129032) in view of Horseman et al (US 2017/0169379).
As per claim 1,
Elenbaas discloses a system comprising:
one or more storage media storing instructions; and one or more processors configured to execute the instructions to cause the system to: receive indication from at least one sensor of heart rate of a player of a computer simulation… (Elenbaas discloses a measurement from a biosensor of heart rate of an immersive game/simulation user; para [0006]. [0029-0030], [0038]); and
alter responsive to a result of comparing the indication of the heart rate … (Elenbaas discloses in response to satisfying a hear rate/physiological criterion reaction diagnosis/reading (test); para [0041-0042], [0074-0075], [0083-0086]), a first aspect of the computer simulation without changing an action in the computer simulation or difficulty level of the computer simulation (modify the simulation sound/loudness or color/light intensity while experiencing identical game functionality and enemy events (action) or staying in completing a level rating of impairment/difficulty; para [0041]. [0044], [0088-0094]. [0105]. [0111])
Elenbaas fails to specifically disclose:
wherein the computer simulation comprises a plurality of scenes; wherein: each scene of the plurality of scenes is associated with a respective heart rate zone defined by an upper bound and a lower bound; and a first scene of the plurality of scenes is associated with a first heart rate zone and a second scene of the plurality of scenes is associated with a second heart rate zone;
evaluate the heart rate based on a first heart rate zone that is associates with a current scene of the plurality of scenes by comparing the indication of the heart rate to the first heart rate zone.
… to the first heart rate zone
However, in a similar field of endeavor, Horseman discloses a game comprising a plurality of chapters (i.e scenes) wherein each chapter is associated with a score from 1 to 10 that the user is scored against and wherein the user’s score is predicated upon the user keeping their heart rate at or above a threshold wherein the user’s score is based upon a range of heart rate measures that Horseman describes as desirable characteristics to less desirable characteristics, that are based upon a being above or below a particular threshold. (Horseman 0087 – 0091)
It would be obvious to one of ordinary skill in the art, at the time of filing, to modify Elenbaas in view of Horseman to use a known technique to modify similar devices in the same way by means of comparing a heartrate zone or range of characteristics having upper and lower bounds (i.e. desirable and less desirable) that is associated with a plurality of different game scenes, and based on the comparison make a modification to the game. This would be beneficial to the player as the system would be able to provide a point incentive to enable the player to be rewarded for learning to maintain control of their emotional responses due to challenging game situations.
As per claim 2, Elenbaas discloses the system of Claim 1, wherein the computer simulation comprises a video game (VR image display; para [0029], [0037], [0062]).
As per claim 3, Elenbaas discloses the system of Claim 1, wherein the first aspect comprises an audio aspect (modify the simulation sound/loudness while experiencing identical game functionality and enemy events (action) or staying in completing a level rating of impairment/difficulty; para [0041], [0044], [0088-0094], [0105], [0111]).
As per claim 4, Elenbaas discloses the system of Claim 1, wherein the first aspect comprises a video aspect (modify the simulation color/light intensity while experiencing identical game functionality and enemy events (action) or staying in completing a level rating of impairment/difficulty; para [0041], [0044], [0088-0094], [0105], [0111]).
As per claim 5, wherein the scene is associated with a first heart rate zone is different than the second heart rate zone (Combination of Elenbaas in view of Horseman wherein Horseman teaches different chapters that are association with different ranges of heart rate measures) (Horseman 0087 – 0091)
As per claim 6, Elenbaas discloses the system of Claim 1, wherein the instructions are executable to further cause the system to: alter responsive to the result, a volume of a sound effect or a voice of a character in the computer simulation (satisfying a reaction diagnosis (test) and then changing/adapting volume; para [0037], [0041], [0082], [0088-0089]).
As per claim 7, Elenbaas discloses the system of Claim 1, wherein the instructions are executable to further cause the system to: replace, responsive to the result a first sound effect with a second sound effect (satisfying a reaction diagnosis (test) and then changing/adapting (replacing) to subsequent/second sound effects; para [0082], [0088-0089], [0093], [0107]).
As per claim 8, the system of Claim 1, wherein a size of the respective heart rate zone for each scene is defined as a difference between the upper bound and the lower bound, and wherein the size of the respective heart rate zone differs for each scene of the plurality of scenes. (Combination of Elenbaas in view of Horseman wherein Horseman teaches different chapters that are association with different ranges of heart rate measures) (Horseman 0087 – 0091)
As per claim 9, Elenbaas discloses the system of Claim 1, wherein the instructions are executable to further cause the system to: alter, responsive to the result, a brightness of a display (modify the simulation color/light intensity/brightness while experiencing identical game functionality and enemy events (action) or staying in completing a level rating of impairment/difficulty; para [0037], [0041], [0044], [0088-0094], [0105], [0111]).
As per claim 10, Elenbaas discloses the system of Claim 1, wherein the instructions are executable to further cause the system to: alter, responsive to the result, a background image of the computer simulation (adapting the simulation background/overlaying 3D objects; para [0029], [0037]. [0105], [0111]).
As per claim 11, Elenbaas discloses the system of Claim 1, wherein the instructions are executable to further cause the system to: alter, responsive to the result, music of the computer simulation (changing music of the simulation; para [0037], [0094], [0111-0112]).
Independent claim(s) 12 is/are made obvious by the combination of Elenbaas and Horseman based on the same analysis set forth for claim(s) 1, which are similar in claim scope.
Dependent claim(s) 13 is/are made obvious by the combination of Elenbaas and Horseman based on the same analysis set forth for claim(s) 5, which are similar in claim scope.
Dependent claim(s) 14 is/are made obvious by the combination of Elenbaas and Horseman based on the same analysis set forth for claim(s) 6, which are similar in claim scope.
Dependent claim(s) 15 is/are made obvious by the combination of Elenbaas and Horseman based on the same analysis set forth for claim(s) 9, which are similar in claim scope.
Dependent claim(s) 16 is/are made obvious by the combination of Elenbaas and Horseman based on the same analysis set forth for claim(s) 8, which are similar in claim scope.
Independent claim(s) 17 is/are made obvious by the combination of Elenbaas and Horseman based on the same analysis set forth for claim(s) 1 and 12, which are similar in claim scope.
Dependent claim(s) 18 is/are made obvious by the combination of Elenbaas and Aoki based on the same analysis set forth for claim(s) 5, which are similar in claim scope.
As per claim 19, Elenbaas discloses the apparatus of Claim 17, wherein the processor is further configured to alter responsive to determining the indication of the heart rate is not within the first heart rate zone (raising above a heart rate amount/target variability (zone); para [0075], [0084], [0111]), presentation of the computer simulation without changing action in the computer simulation or difficulty level of the computer simulation (modify the simulation sound/loudness or color/light intensity while experiencing identical game functionality and enemy events (action) or staying in completing a level rating of impairment/difficulty; Elenbaas para [0041], [0044], (0088-0094], [0105], (0111]).
As per claim 20, Elenbaas discloses the apparatus of Claim 17, wherein the processor is further configured to alter the presentation of the computer simulation responsive to determining the indication of the heart rate is not within the first heart rate zone at least in part by altering music of the computer simulation (Elenbaas discloses changing music of the simulation in response to being close enough to a target zone of breathing; para [0037], [0094], [0111-0112]).
Response to Arguments
Applicant’s arguments with respect to claim(s) 1 - 20 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. Please see above rejection in view of the newly found prior art to Horseman.
Conclusion
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/RAW/ Examiner, Art Unit 3715
4/2/2026
/KANG HU/ Supervisory Patent Examiner, Art Unit 3715
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